LAY v Minister for Immigration - [2014] FCCA 923

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAY & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 923

Catchwords:
MIGRATION – Migration Review Tribunal – application for subclass 461 New Zealand Citizen visa – application made more than 12 months after the cessation of last substantive visa held by the first applicant – second applicant born after first applicant’s visa application was made but before it was decided – second applicant taken to have applied for same visa as mother on the day the second applicant was born – second applicant’s visa application not yet determined.

Legislation:
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 s.338
Migration Regulations 1994 reg.2.08, cls.3001, 3002, 3003, 3004 and 3005 of Sch.3, cl.461.213 of Sch.2

First Applicant:

CHREP LAY

Second Applicant:

JELINA CHOEUN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 824 of 2013

Judgment of:

Judge Riley

Hearing date:

5 March 2014

Date of last submission:

2 April 2014

Delivered at:

Melbourne

Delivered on:

16 May 2014

REPRESENTATION

Counsel for the first applicant:

The first applicant appeared in person

Solicitors for the first applicant:

T.A. Fernandez

Counsel for the second applicant:

No appearance

Solicitors for the second applicant:

T.A. Fernandez

Counsel for the first respondent:

Catherine Symons

Solicitors for the first respondent:

Clayton Utz

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz

ORDERS

The application filed on 11 June 2013 be dismissed.
The costs of the proceeding be reserved until the first respondent has complied with his continuing obligation to determine the application that the second applicant is taken to have made on 4 June 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 824 of 2013

CHREP LAY

First Applicant

JELINA CHOEUN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Migration Review Tribunal.
The first applicant applied for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa on 26 April 2012. At that time, the first applicant was pregnant with the second applicant. The second applicant was born on 4 June 2012.
On 4 July 2012, a delegate of the Minister refused the first applicant’s application. The delegate determined that the first applicant was unable to satisfy subclause 461.213(b)(ii) of Schedule 2 of the Migration Regulations 1994. That was because the first applicant had made her visa application more than 12 months after the “relevant day”, being the day when her most recent substantive visa had ceased to have effect. The first applicant’s most recent substantive visa was a tourist visa that ceased to have effect on 6 January 2010. The delegate did not address the situation of the second applicant.
On 20 July 2012, the first and second applicants applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a hearing on 5 March 2013. On 6 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 923
Decision Date: 16 May 2014

CaseChat Overview and Summary

In *Lay v Minister for Immigration*, the applicant, Mr Lay, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr Lay had established a well-founded fear of persecution for reasons of his imputed political opinion.

The primary legal issue before the Federal Court was whether the delegate of the Minister had erred in law by failing to properly consider and assess the evidence relating to Mr Lay's imputed political opinion. Specifically, the court was required to determine if the delegate had applied the correct legal test for assessing imputed political opinion and whether the delegate's findings of fact were reasonably open on the evidence presented.

Judge Riley found that the delegate had made an error of law by failing to adequately consider the evidence of Mr Lay's imputed political opinion. The delegate's assessment had focused too narrowly on whether Mr Lay himself held a political opinion, rather than considering whether he was *imputed* to hold one by the relevant persecuting authorities. This failure meant the delegate did not apply the correct legal standard for assessing protection claims based on imputed political opinion. The court concluded that the delegate's decision was not reasonably open on the evidence.

The Federal Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders